Tag: Serial

Critiquing a murderer

If there was ever an example of how the adage ‘The evidence speaks for itself’ is mistaken, it’s the show Making a Murderer. The Netflix documentary series goes to great lengths to not only show up holes in the prosecution’s cases against Steve Avery and Brendan Dassey for the death of Teresa Halbach; it also seriously suggests that the Manitowoc County Sheriff’s Department planted evidence to secure a conviction. The also toys with the idea that the guilty verdicts Steve and his nephew, Brendan Dassey, received were motivated – at least in part – by local prejudices against the greater Avery clan.

All without the documentarians having to say a single word.

True crime documentaries have always been popular, but I guess after the success of The Jinx and Serial, there has been a resurgence in interest in how serious crimes are investigated and prosecuted. Serial in particular took what looked like a standard ‘Boyfriend murders ex-girlfriend’ story and prised apart the seemingly straightforward prosecution, revealing a case filled with unreliable witnesses for the State, and dodgy use of then-new digital forensic evidence. As I wrote here and here, Serial’s Sarah Koenig used evidence in a really interesting (but sometimes frustrating) way, contrasting the weight the prosecution and the defence placed on the evidence at trial with the results of her own investigation into the guilt or innocence of Adnan Syed.

Sarah’s voice is crucial for the effectiveness of Serial’s story-telling. In the case of Serial we have a fair idea of what Sarah is thinking, and it’s relatively easy to recognise what assumptions and prejudices she brings to the table. Serial was equal parts the story of Adnan Syed’s probable innocence and Sarah Koenig’s attempt to unravel a case well after it had been tried. Making A Murderer, however, has no narrator. Rather, the story of the prosecutions of Steve Avery and Brendan Dassey are told entirely via the careful selection of archival footage (and what are, I assume, a few modern day interviews). As such, Making a Murderer goes about the process of outlining the apparent injustices in the prosecutions of Steve Avery and Brendan Dassey in a quite different (and probably more problematic) way.

In my PhD, and then the book I based upon it (available here), I discuss how selectively citing evidence is one effective way to make a case look stronger than it might be. Making a Murderer presents the case for the defence, and – on the face of it – it looks strong. There are clear procedural issues in the State’s case, for example, and it seems reasonable to assume that some of the investigating officers were not playing fair. Yet whilst we are presented with obvious flaws in the prosecution’s case, it is still the case that the various appellate courts have upheld the guilty verdicts which were handed down. Crucially, we never see the legal reasoning of these higher courts. So, while their calls to uphold the guilty verdicts seem ridiculous, we are never told on what points of law the courts made their decision.

All of this is to say that what we’ve seen in Making a Murderer, I think he’s innocent of the crime the State claims he committed. ((Note the caveat here; I don’t know if Steve Avery is innocent of the crime of killing Teresa Halbach; I simply don’t think the State’s construal of what happened that day is plausible.)) But is very much ‘from what I’ve seen’. Unlike Serial, where Sarah Koenig at least toyed with the idea that maybe Adnan Syed was guilty, Making a Murderer never seeks to present the case for the prosecution as anything other than the product of a conspiracy by the Manitowoc County Sheriff’s Department and the District Attorney to convict Steve Avery (and Brendan Dassey) by any means necessary. The evidence presented indicates the likely innocence of Avery boys, but the case for the prosecution is never filled out.

Yet – as I said – we know that the prosecution of Steve Avery and Brendan Dassey was successful. We know that various higher courts have upheld those verdicts. It is, then, obvious that there is something compelling about the prosecution’s case that we have not been told. This is not to say Making a Murderer is fraudulent, or that there was no great injustice. Rather, it’s the recognition that we only get to see a part of the story, and recognising that fact makes the case more interesting. Why was the jury persuaded of the State’s seemingly flawed case? Why have the various appellate courts upheld those verdicts, given the issues illustrated by the defence? Is it really just a system covering up for itself, or is there something about the prosecution’s case that we have not been told?

Strangely enough, I’m not so much interested in ‘Making a Murderer’ for its central conspiracy theory ((Fine. I will say one thing; I find it astounding that the prosecution essentially gets away with describing two seemingly incompatible theories of how Teresa Halbach was killed. The theory as to her fate in the Steve Avery prosecution differs remarkably from that in the prosecution of Brendan Dassey. The fact it is the same prosecutor in both cases compounds this issue; the State effectively has secured two convictions for the same murder, one of which – if true – suggests the other could not have happened the way the prosecution has argued elsewhere.)) as I am for how ably it makes you root for Steve and Brendan’s defence counsels. This is despite the fact that we know both of the accused end up being convicted of crimes it seems they did and could not have committed. Knowing that outcome, and yet seeing the two cases play out over some eight or so hours, pushes buttons. Making a Murderer is, then, audience manipulation at its finest.

For the Love of Evidence

Over Xmas I listened to Serial, and had a few thoughts about it. Post Xmas I have been catching up on Undisclosed, the pseudo? Spiritual? Something “sequel” to Serial, which follows the exploits of Rabia Chaudry and her friends, as they get to gripes with the case of the murder of Hae Min Lee by Adnan Syed. ((Adnan was accused, and eventually convicted, of the murder of Hae Min Lee back in February, 2000. The evidence used to convict him mostly consisted of a congruence between the sole key witness in the case, Jay Wilds, and a series of cellphone pings which placed Adnan in the vicinity of where Hae Min Lee’s body was buried on the day it was alleged she was murdered.))

Both Serial and Undisclosed are interested in their use of evidence. Serial takes the journalistic avenue of searching for the “smoking gun”, which will either show Adnan to be clearly innocent or guilty. Undisclosed takes the more lawyerly approach of trying to show that the inferences the prosecution made in the case are clearly unsound. Both podcasts are about the evidence, but they privilege different kinds of evidence.

Evidence is awkward. “Smoking guns” – pieces of evidence which uncontroversially support one and only one explanatory hypothesis – are rare. Most “smoking guns” end up being examples of evidence which at best strongly supports one hypothesis and at worst supports one hypothesis only if a certain number of assumptions are taken to be true. Many things which are called “smoking guns” aren’t; the evidence everyone says showed Richard Nixon was guilty with regards to Watergate – the missing Oval Office recordings – only look conclusive if you assume the lapse in the recording is relevant to the Watergate Affair (and not, say, a discussion about Nixon covering up the existence of a space navy).

Serial is very much a journalist’s very long form take on Adnan’s presumed innocence. Sarah Koenig ums-and-ahs over whether she thinks Adnan can really be guilty (relying heavily, I should add, on just how nice and normal he seems to her on the telephone), eventually claiming that she couldn’t have convicted him should she have been on the jury. Her reason: the State’s case against Adnan doesn’t survive scrutiny because there is no decisive which supports the claims the Prosecution made.

The argument presented by Koenig in Serial for Adnan’s likely innocence is interesting precisely because the evidence used by the Prosecution did, in fact, lead to a verdict of guilty; Koenig and her producers end up claiming that it’s not so much the evidence which decided Adnan’s guilt but, rather, the way in which it was selectively cited. Koenig and co. do not go so far as to allege misconduct from the police and the courts in this matter; it’s entirely plausible for a listener of the podcast to think “That’s just how things were done in Baltimore back then.” Which is to say that the things which allowed certain parts of the evidential record to be unquestioningly presented by the Prosecution was just a feature of the system at the time. ((Both Serial and Undisclosed emphasise that things have changed in the intervening years.))

The argument in Serial, then, is that the evidence was the evidence, but it did not support the prosecution’s take. The fact it was not challenged by the defence was a fault of the Defence. That’s a different take from that in Undisclosed. Undisclosed asserts some kind of conspiracy by the police. Or, at least, some of the hosts toy with the idea without necessarily ever stating it outright. ((I should point out that I’m only halfway through the current crop of Undisclosed episodes, so this issue of conspiracy might get addressed more fully in a later episode.))

Undisclosed takes Serial as a starting point for the analysis of the inadequacies of the prosecution of Adnan Syed, but rather than looking for the “smoking gun”, Chaudry and co. look at the inferences the police made in the case. They argue not only are these inferences wrong (such as how they rely on cellphone pings to track Adnan on the day they suspect the murder took place), but that the police knew of these issues; the investigating officers were not blithely ignorant of the inconsistencies but, rather, knowingly working around them in order to secure a conviction.

Undisclosed – if you will excuse a cliche – goes for the jugular: the police not only decided early on that Adnan was the killer, but they quite deliberately coached witnesses to ensure that he was convicted, even in the face of evidence they knew indicated he probably could not have committed the crime the way they claimed it played out. ((Not only that, but due to the success of Serial, the key witness and prosecutors have slightly changed their stories; see this interview in The Intercept))

The idea that the police secure convictions unethically is uncontroversial. ((Undisclosed spends an entire episode – almost an hour and a half – detailing previous cases of dubious and eventually overturned convictions which were investigated by the detectives who charged Adnan.)) What tends to be said these days is that it doesn’t happen as often as it did. In that respect Chaudry and co. thesis is not remarkable, especially since as lawyers they are probably much more sensitive to, and aware of, cases where the police do not play fair. However what they claim is, in the end, a conspiracy theory: the police and the prosecution knowingly kept from both the defence and the jurors evidence that would have cast doubt on Adnan’s innocence, and they have continued to maintain that the conviction is secure to this day.

Chaudry and co. come to this conclusion of conspiracy via an analysis of the way the prosecution sorted and presented the evidence. The hosts of Undisclosed are interested in how inferences were drawn from the available evidence, and how said inferences were either followed up, ignored or presented. Unlike Koenig, Chaudry and co. are willing to entertain the notion that the authorities had an agenda. ((One of the interesting aspects of Serial was Koenig’s claim that she thought it was unlikely the pursuit of Adnan as prime suspect could have been motivated by racism. Chaudry and co. seem to think it’s quite possible Adnan’s arrest and then denial of bail was – given what was said in court – very racist indeed.))

So, why is this interesting, and why is this of interest to me? Well, because evidence is something which is poorly understood by most people. People fetishise evidence, and some professionals fetishise particular kinds of evidence.

Take Serial. Koenig really wants a “smoking gun” which shows either Adnan is guilty or innocent. She does not find one, and so ends up saying that if she had been on the jury, then she could not have convicted him. That is to say she finds in favour of reasonable doubt (an understandable position), but can’t shake the idea that maybe he was guilty after all. The thing which would sway her belief – the “smoking gun” evidence – is just not available.

The Undisclosed discussion of evidence is all about poking holes in the official theory of the murder of Hae Min Lee. What the hosts are interested in is the hypotheses you can reasonably infer from other evidence, which is not just a kind of evidence, but the kind of evidence we typically rely on a day-by-day basis. For example, you think your child is eating all the biscuits, and your only evidence is that whenever you want a ginger nut there aren’t any. You know you bought some earlier, but now the kids are back from school, and there are none left. From that you infer “The kids ate the biscuits” and you charge them with this most heinous of crimes.

For the hosts of Undisclosed the issue is not that they have a smoking gun, but rather that the inferences drawn from the available evidence in no way support the idea Adnan could have committed the crime the way the State claimed he did. ((A constant issue I have with Undisclosed is how they move from “The State’s case is implausible” to the attendant claim “Adnan did not murder Hae Min Lee”. It’s not at all obvious that the details of the prosecution case being at fault means the general thesis is false (although it does show it’s hard to believe). It’s quite possible Adnan killed Hae Min Lee, the police somehow know he killed Hae Min Lee, but the actual details are so fuzzy that no clear story has emerged. But that’s by-the-by, really.)) For the people behind Undisclosed, the case falls over because the details the investigators inferred from the morass of evidence fail to survive scrutiny.

On one level this is good, because it shows up issues in the investigation, and casts doubt on the security of Adnan’s conviction. Yet it also doesn’t provide evidence for an alternative explanatory hypothesis of who committed the crime. ((Whilst the hosts of Undisclosed do think that Jay Wilds is a suspicious character, as of yet they are not claiming he was the real murderer.)) As such, the evidence which undergirds the analysis in Undisclosed can lead to a “So?” kind of response. “Sure”, people might say, “the case against Adnan looks shaky, but who else could have committed the crime?” ((I do have an issue with the strict literalism the makers of Undisclosed engage in; if someone says in their testimony “it happened a year ago”, then they take it that it pretty much happened 12 months ago. This kind of “If someone says x, then they only mean x” is a common trope in reasoning, which doesn’t really reflect the fact most of us are not all that precise when we speak. Most people gesture towards detail, as opposed to give a frank and full accounting, so the idea we should take all testimony literally does, I think, in many cases suggest radical inconsistencies where only minor details are at stake.)) That is to say, if you understand any explanation is going to rely on a certain amount of selective evidence use, and that all explanations of social phenomena (like murder) are going to have loose ends, then apparent inconsistencies can be waved away as being part of the difficulty of ever getting the full story of what really happened.

Now, this is to be expected; the hosts of Undisclosed are lawyers and all they need show is that there is reasonable doubt about the theory Adnan murdered Hae. However, an awful lot of the theory which drives their approach to instilling a feeling of reasonable doubt is about bolstering the theory the police and prosecution conspired to get a guilty verdict. Admittedly, they present a lot of evidence to support this theory, from weird plea deals with a key witness, previous cases in which the investigating officers obtained insecure convictions, the way in which evidence in favour of the defence was never given to Adnan’s legal team… It certainly looks suspicious. However, some of that suspicion comes simply from believing in the innocence of Adnan and seeking to explain away the guilty verdict.

Now, assumptions are crucial when making inferences; evidence is only evidence with respect to surrounding theories. The hosts of Undisclosed are practicing lawyers and they know how to show up the problems with rival theories. However, their strategy with dealing with the official theory is – to my mind – as frustrating as Sarah Koenig’s eventual conclusion. They present grounds for reasonable doubt, based upon good evidence of a conspiracy. Yet they downplay response to their conspiratorial claims either by simply not recognising that there could be non-conspiratorial explanations for some features of the case, or claiming such non-conspiratorial explanations are prima facie unlikely. It seems the rhetoric of defending Adnan is more important than a careful analysis.

And there’s the rub; maybe it should be. If you were really convinced that an injustice had been done, would you pepper your argument with “But, of course…” or would you do your best to persuade others of your righteousness? I wager it’s the latter, and that, just maybe, I’m judging the epistemic merits of podcasts when, really, I should be much more interested in their rhetoric.